A three-judge panel of the D.C. Circuit ruled on Friday in Al Maqaleh v. Gates that habeas does not extend to detainees at Bagram Airfield in Afghanistan.

The panel overturned a decision over a year ago by Judge Bates of the D.C. District that habeas extends to Bagram detainees under the practical, not formal, reasoning of Boumediene v. Bush, the 2009 decision ruling that habeas extended to detainees at Guantanamo Bay.

The difference in the decisions is simply the application of three-factor test in Boumediene:

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.

In a decision that relied heavily on Johnson v. Eisentrager--the 1950 case rejecting the habeas claims of 51 German nationals captured and tried for war crimes in China and detained at Lansberg Prison, a facility under the control of the United States as part of the Allied Powers' post-war occupation--the panel ruled that the balance favored the government's position that habeas does not extend to Bagram.

The court ruled that the first factor weighed in favor of the detainees--that the citizenship and status of the detainees at Bagram (who were subject to a detention process with less protections than the process for Guantanamo detainees and who were not tried for war crimes) weighed more in favor than the citizenship and status of the detainees in either Boumediene or Eisentrager.

But the court ruled that the second and third factors weighed more strongly in favor of the government. As to the second factor, the court ruled that U.S. control (or relative lack of it, in the form of de facto sovereignty) over Bagram is similar to its control over Lansberg in Eisentrager and less than its control over Guantanamo Bay in Boumediene. As to the third factor, the court relied on the fact that Bagram is in an active theater of war--and neither Lansberg nor Guantanamo were.

The court rejected the appellants' argument that the government's position would allow the government to manipulate whether habeas applied simply by changing the location of detention.

Judge Bates's earlier decision extending habeas to Bagram did not credit the consideration that Bagram is in an active theater of war the same way that the D.C. Circuit did. Bates ruled that technology (e.g., video-conferencing) made it practically just as easy to extend habeas to Bagram as Guantanamo, notwithstanding the theater of war. The D.C. Circuit didn't examine the practical considerations so closely; instead, it relied more on Bagram being in a theater of war, without examining more closely why, as a practical matter, that would cut against habeas. (The D.C. Circuit's approach was really a common law approach, navigating between the facts in Eisentrager and Boumediene on the Boumediene factors, without a lot of explanation of why the Boumediene factors mattered. Judge Bates, in contrast, seemed to focus more practically on why and how the Boumeidene factors applied to Bagram--and how habeas might work there.)

Both decisions followed Boumediene and rejected a formalistic approach in favor of a practical approach. The two courts simply disagreed as to how the Boumediene factors applied.

If the case gets to the Supreme Court, and if Justices Ginsburg, Breyer, and Sotomayor vote for extending habeas to Bagram (as Justices Ginsburg, Breyer, and Souter did in Boumediene), the case will likely turn on two factors: Justice Kennedy; and nominee Elena Kagan. Justice Kennedy, the author of the Court's 5-4 opinion in Boumediene, may well adopt the D.C. Circuit's position (and not Judge Bates's approach), switching the count to 5 against habeas at Bagram. But even if Kennedy were to adopt Judge Bates's approach, a Justice Kagan could either vote with the Boumediene minority, or recuse herself--either way upholding the D.C. Circuit ruling (assuming an en banc D.C. Circuit upholds the panel ruling, or declines to take the case up).

The paper argues that the Supreme Court erred in heightening the pleading standard in Bell Atlantic v. Twombly and Ashcroft v. Iqbal from notice pleading to "plausibility pleading"--a requirement that plaintiffs "must in effect prove their case before they have even had the chance to obtain evidence from the defendant through the discovery process." The paper argues that "[t]he practical effect of the heightened pleading standard is that many deserving plaintiffs will be unable to have their claims heard in court, since they will not have access to any crucial facts that the defendant is able to keep out of public view." This impedes plaintiffs' access to courts, but more: It interferes with the important role that private litigation plays in regulation.

We've posted on Twombly and Iqbal--and legislative responses to those cases--here, here, here, and here.

Rand Paul, the Republican nominee for U.S. Senate from Kentucky, seems to have reconsidered his distinction between public discrimination and private discrimination in taking on the Civil Rights Act of 1964. (In this clip from the Rachel Maddow show, Paul argued against federal the federal anti-discrimination law insofar as it applies to places of private accommodation.)

But his constitutional claims may nevertheless be worth considering. He makes three:

1. The Civil Rights Act of 1964 Violates Property Rights. Paul's claim is that a federal prohibition on private discrimination amounts to a violation of private property rights--a Due Process or regulatory takings claim. But the Supreme Court in 1964 rejected precisely this kind of challenge to the Civil Rights Act of 1964 in Heart of Atlanta Motel v. U.S. In just four or five paragraphs, the Court wrote that it had repeatedly rejected property rights claims against civil rights legislation, going back to The Civil Rights Cases, that anti-discriminatory legislation was common among the states, and that the federal law posed no particular threat to property or liberty. (The Court mentioned a rational basis test, but barely applied it, instead deferring to Congress's judgments in passing the Civil Rights Act of 1964.) The Court also flatly rejected a challenge based on the Thirteenth Amendment, that the private anti-discrimination provisions of the Civil Rights Act of 1964 amounted to involuntary servitude.

2. The Civil Rights Act of 1964 Violates the First Amendment. Paul's claim here is that Congress can't prohibit individuals from advancing discriminatory or racist views without violating the First Amendment's Speech Clause. But his First Amendment claim is perhaps better thought of as an argument against forced inclusion of an unwanted person in a group that engages in "expressive association," as in Boy Scouts of America v. Dale. In that case, the Court ruled that New Jersey's Law Against Discrimination, which prohibited discrimination against gays and lesbians, violated the First Amendment as applied against the Boy Scouts. But there's no indication that most private corporations engage in expressive association under the Boy Scouts test; it's simply inapplicable to an organization that doesn't, as an organization, engage in "expressive activity" with a purpose of excluding or discriminating. (Your local grocery, favorite restaurant, and book store probably don't fit this description.)

3. Congressional Authority Could Be Used in Other Ways. Paul argues that a Commerce Clause that would support federal anti-discrimination legislation against private actors could also support federal gun-rights legislation against private actors--a result, he claims, that some supporters of the Civil Rights Act of 1964 may not favor. For example, there are now several bills before Congress that would provide reciprocity for legal concealed weapons carriers and thus allow them to carry their weapons in states without a concealed weapon law. See, e.g., H.R. 197. But this is no constitutional argument. It simply shows that an expansive federal Commerce Clause can support a wide range of federal action. As the Court in Katzenbach v. McClung wrote:

The power of Congress [under the Commerce Clause] is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitations it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude. We find in it no violation of any express limitations of the Constitution and we therefore declare it valid.

Loyola University (Chicago) School of Law is organizing a constitutional law colloquium titled How Democratic is the Constitution? on Friday and Saturday, November 5 and 6, 2010, at the Philip H. Corboy Law Center in Chicago.

Organizers Professors Alexander Tsesis and Michael Zimmer invite abstract submissions of 150 to 200 words from constitutional law professors interested in contributing to the current debates under the broad rubric of this topic. The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.

The submission deadline is May 31, 2010; submit topics, abstracts, papers, questions, and comments to Program Administrator Carrie Bird at clbird30@gmail.com.

Organizers look to bring together constitutional law scholars at all stages of their professional development to discuss projects, developments, and future work. They hope to schedule presentations for all who submit and to group presenters by subject for intensive discussions and critique.

In a movie review for his elementary newspaper, The Beaverboard, the twelve year old future-Judge Cooney assessed the classic film To Kill a Mockingbird with these fateful words: "Though the picture is overall OK, it's also kind of boring in parts." Not very good writing, even for a twelve year old, but it is the political import of the sentiment that sounds the death knell for Judge Cooney's nomination to the United States Supreme Court. As a Senator - who also happens to be a sworn presidential enemy who aspires to the high bench himself - phrases it, he could "not in good conscience bring myself to vote for someone who might show up at the Court on the first Monday in October wearing not black judicial robes but the white uniform of the Ku Klux Klan."

This is the opening of Christopher Buckley's novel, Supreme Courtship, published in 2008 and more timely than ever.

So far, no movie or book reviews from SCOTUS nominee Elena Kagan's elementary school days have surfaced, although her senior college thesis, To the Final Conflict: Socialism in New York City, 1900-1933, is making the rounds, garnering comments (NYT here) and is available here.

However, for those looking for summer reading of the more creative - - - and humorous sort - - - a better bet would is Buckley's novel. After the fictional Judge Cooney and another highly qualified nominee are nixed, the highly unpopular president nominates an unconventional choice - - - an exceedingly popular television judge, Pepper Cartwright. She's confirmed. The Court she joins is more diverse than our own, an interesting touch. But there's romance, politics, and skullduggery and a fairly fast-paced plot. It's not great writing, and nothing is lost by listening to it in its rendition by Anne Heche. [MP3 audio clip here]

All in all, the novel is a romp, but it's satire that isn't so far off the mark.

The Supreme Court's 7-2 ruling yesterday in U.S. v. Comstock,upholding the government's ability to order "sexually dangerous persons" detained beyond their federal prison term, is a significant statement on the power of the federal government. The case has important ramifications for other public debates and cases on the scope of federal authority and federalism--particularly on the individual health insurance mandate and health care reform's alleged violation of state sovereignty under the Tenth Amendment.

There are four aspects of the Comstock ruling that ought to catch our attention:

1. The Scope of the Sweeping Clause. The five-member majority (Justice Breyer, who wrote for the Court, Chief Justice Roberts, and Justices Stevens, Ginsburg, and Sotomayor) validated the broad and sweeping authority of the Necessary and Proper Clause, reviving the expansive language given to that Clause in McCulloch v. Maryland and citing to that case throughout the ruling. (This itself is notable. According to a Westlaw search, the Court has "examined" or "discussed" McCulloch in only nine other cases in the last 20 years. The Comstock Court, in contrast, uses that case aggressively.) The Court adopted an extremely deferential version of the McCulloch test for the Necessary and Proper Clause, writing that "Congress could have reasonably concluded . . ." in support of the Act. And the Court ruled that the Clause could support a federal Act toward the end of another federal program that itself was predicated on an enumerated power in Article I, Section 8--that an Act under the Necessary and Proper Clause can be more than once removed from an enumerated power.

The upshot of the majority ruling is that the Necessary and Proper Clause can support broad federal action beyond the enumerated powers in Article I, Section 8, as long as the ultimate end (and not merely the immediate end) is one of those enumerated powers. And moreover, as discussed below, it's up to Congress, not the Court, to decide the limits of this power.

Justices Kennedy and Alito would have read a narrower Necessary and Proper Clause, but they nevertheless joined the Court in its conclusion that the Clause supported this legislation.

2. Deference to Congress. The five-member majority read the Necessary and Proper Clause as giving Congress, not the Court, the power to determine the scope of its authority. The Court deferred to Congress using something like Williamson v. Lee Optical rational basis review, writing that "Congress could have reasonably concluded . . ." in support of the legislation.

This is the kind of deference we haven't seen in the Court's recent Commerce Clause jurisprudence (with the possible exception of Gonzales v. Raich). And here it's notable that Justice Breyer wrote for the Court: Justice Breyer also wrote the lengthy and detailed dissents in U.S. v. Lopez and U.S. v. Morrison showing how the legislative evidence supported a rational basis for finding that the regulated activities in those cases substantially affected interstate commerce--why the Court should have deferred to Congress in those cases. Comstock is something of a vindication of the Breyer position as applied to the Necessary and Proper Clause.

3. A "Living" Constitution, Expanding Powers. The five-member majority was unconcerned that detaining federal prisoners as "sexually dangerous persons" was an idea unanticipated by the Framers. The Court quoted New York v. U.S. and McCulloch in writing that "the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role," and that ours is "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs."

4. No Infringement upon State Sovereignty. The five-member majority reaffirmed the Tenth Amendment as a truism, writing that "[v]irtually by definition, [powers in Article I, including the Necessary and Proper Clause] are not powers that the Constitution 'reserved to the States,'" and that nothing in the Act intruded into the powers of the states.

Taken together, these aspects of the Comstock ruling reflect broad (and expanding) federal authority, with little concern for federal infringement upon so-called "states' rights." As the cases challenging health care reform move through the lower courts, we'll see how this plays out. But it's hard to imagine how, with this new 7-2 ruling, this Court wouldn't also uphold health care reform (including the health insurance mandate).

No Governor before now has sought to control the Third Branch of government through the reappointment process. Judicial decisions must be made without fear of retaliation: competence, integrity, impartiality -- those qualities have been fostered by law and by tradition. Every litigant before the court has known that his or her case would be decided fairly, without undue political influence, by impartial, independent judges. Our court system has been an exemplar for other states; our courts’ opinions are cited and followed by other state courts. Not everyone agrees with every decision, nor should unanimity be expected in a free society.

No one, not even the Governor, suggests that Justice Wallace is not qualified to serve. He has demonstrated, as a trial judge, as an appellate judge, and as an Associate Justice of the New Jersey Supreme Court for almost seven years, integrity, thoughtfulness, scholarship, compassion and adherence to the rule of law. We can ask no more of any judge. That he is the second African American to serve on our State’s highest court, and that the Court has benefitted from his understanding of our diverse society, in addition to his exemplary record, argue powerfully in favor of his reappointment.

In a 7-2 opinion, the Court this morning decided United States v. Comstock, argued in January (our discussion here). The Court reversed the Fourth Circuit and upheld the constitutionality of a Congressional statute, 18 U. S. C. § 4248, allowing the order of civil commitment for a federal prisoner who is a sex offender, even if the commitment continues beyond the date the inmate otherwise would be released.

The question presented was whether the statute was within Congressional power under the Necessary and Proper Clause, Art. I, § 8, cl. 18.

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

In a well-structured opinion, written by Justice Breyer (pictured right)
the Court provided five bases for its opinion, which "taken together" justified the Court's conclusion:

The Necessary and Proper Clause grants Congress broad powers;

This type of legislation is a long-standing Congressional practice: "the civil-commitment statute before us constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades."

The statute is merely an extension to persons already in federal custody ("If a federal prisoner is infected with a communicable disease that threatens others, surely it would be “necessary and proper” for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others).

Congress properly accounted for state interests and there is no Tenth Amendment issue.

The statute has a narrow scope, and although relying on the necessary & proper clause, the "links" to an "enumerated Article I power are not too attenuated."

As to the fifth reason, Breyer does not cite a specific enumerated power to which the necessary and proper clause "links." This lack provides much of the substance of Thomas' lengthy dissenting opinion:

The Government identifies no specific enumerated power or powers as a constitutional predicate for § 4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpreted most expansively, [citation omitted] can justify federal civil detention of sex offenders. Under the Court’s precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617–618; United States v. Lopez, 514 U. S. 549, 563–567 (1995).

Thomas also takes issue with the majority's dismissal of any Tenth Amendment problem, arguing that the federal statute "closely resembles the involuntary civil-commitment laws that States have enacted under their parens patriae and general police powers. "

Breyer's opinion for the Court bracketed any due process concerns, citing Kansas v. Hendricks, 521 U. S. 346 (1997). However, there is an obvious connection between the Court's narrow reading of due process in Hendricks and the expansive reading of the Necessary and Proper Clause in Comstock. Indeed, the Court seems keen to uphold laws regulating so-called "sex offenders."

The Justice Department last week filed its first defense of the new health insurance mandate in federal court. The government responded to the plaintiffs' motion for a preliminary injunction in Thomas More Law Center, et al. v. Obama in the Eastern District of Michigan, a case filed just after President Obama signed into law the Patient Protection and Affordable Care Act (the health care reform act), which includes the mandate.

Plaintiffs filed their motion and brief on April 5, arguing that Congress lacked authority under the Commerce Clause to require individuals to purchase health insurance. The arguments are by now all too familiar; from the plaintiffs' brief:

The Act does not even pretend to fit within any of the Court's previous Commerce Clause rulings. The Individual Mandate attaches to a legal resident of the United States who chooses to sit at home and do nothing. This resident is, quite literally, merely existing. He or she is neither engaged in economic activity nor in any other activity that would bring him or her within the reach of even a legitimate regulatory scheme. . . . In this case, we have neither economics nor activities.

. . .

If the Act is understood to fall within Congress' Commerce Clause authority, the federal government will have the absolute and unfettered power to create complex regulatory schemes to fix every perceived problem imaginable and to do so by ordering private citizens to engage in affirmative acts, under penalty of law, such as taking vitamins, losing weight, joining health clubs, buying a GMC truck, or purchasing an AIG insurance policy, among others. The term "Nanny State" does not even begin to describe what we will have wrought if in fact the Health Care Reform Act falls within any imaginable governmental authority. To be sure, George Orwell's 1984 will be just the primer for our new civics.

The government responded that the plaintiffs lacked standing--no actual or imminent injury and no ripeness, because the mandate doesn't go into place until 2014, and the plaintiffs' situations may change between now and then. On the merits, the government argued both Commerce Clause and Taxing Clause. As to the activity-inactivity distinction that has attracted so much attention in Commerce Clause arguments, it wrote:

Plaintiffs' claim that individuals who forgo health insurance are not engaged in any economic "activity," is fallacious. Some individuals make what Congress found is an "economic and financial decision" to try to pay for health care services without reliance on insurance. Indeed, plaintiffs here concede that they intend to "pay for health care services as [they] need them." Plaintiffs thus have not opted out of health care; they are not passive bystanders divorced from the health care market. They have made a choice regarding the method of payment for the services they expect to received, no less "active" than a decision to pay by credit card rather than by check.

The government went on to argue that the mandate is an essential part of the larger health reform package and therefore within Congress's Commerce Clause authority under Raich, and that the mandate also falls under Congress's broad taxing power in the general welfare as a legitimate revenue-raising device notwithstanding its regulatory goal.